The Supreme Court of Appeal has dismissed an appeal by the minister of home affairs, who was ordered by the high court in Pretoria last year to grant citizenship to two brothers born in SA of foreign parents in the 1990s.

Brothers Joseph Emmanuel Jose and Jonathan Diabaka are entitled to South African citizenship even though their parents are Angolan.

This follows a ruling of the Supreme Court of Appeal on Tuesday, when it dismissed, with a punitive cost order, an application by the home affairs minister for leave to appeal against a court order that he grant citizenship to the two men, who were born in SA of foreign parents.

Joseph and Jonathan, born in SA in February 1996 and August 1997 respectively, have lived in the country their entire lives. Their parents are Angolan citizens who fled that country in 1995 and sought asylum in SA. The parents and children were granted refugee status in 1997.

This endured until January 2014 when the department informed the family that their refugee status had been withdrawn. When the status was withdrawn, Jose was 17 and Jonathan 16.

The department referred them to the Angolan embassy, where they were advised that to remain lawfully in SA, they had to apply for Angolan passports and failure to do that would result in “repatriation”.

The brothers have never been to Angola, they have no family there, know little about Angola, and neither speak any Portuguese.

When they experienced difficulties in applying for South African IDs, they approached Lawyers for Human Rights who advised them that they were eligible to apply for citizenship.

However, their efforts were not successful and they then applied to the high court in Pretoria to direct the department to grant them South African citizenship.

The court ordered the department to grant them citizenship in March last year.

Dissatisfied with this order, the minister applied for leave to appeal to the SCA.

The high court granted leave only on the question of whether it was competent for the court to order the minister to grant, as opposed to consider, the brothers' applications for citizenship.

In the judgment passed on Wednesday, the SCA held that the brothers met the requirements for South African citizenship in terms of the Citizenship Act.

This is because they were born in SA of parents who are not South African and who have not been admitted into SA for permanent residence and that they have lived in SA from the date of birth until they became adult.

On the question of whether a court can direct the department to grant the men's application for citizenship, the SCA said while the doctrine of the separation of powers must be considered, this did not mean that there might not be cases in which a court may need to give directions to the executive.

The SCA said given that it was clear that the men met all requirements for citizenship, it would serve no purpose to send the matter to the minister to make a fresh decision.

The SCA said a recent Constitutional Court judgment passed in July, which sets a precedent, affirmed that a court may direct the department to grant citizenship to an applicant.

The appellate court said though the precedent was set after the heads of argument -setting out the basis for the minister's appeal - were filed, the department's position ought to have changed.

The court said the department was obliged to reconsider its position.

For that reason, the SCA dismissed the minister's appeal with costs on a punitive scale.

Upon application to the Minister of Home Affairs, the Minister may under terms and conditions determined by him or her allow distinguished visitors or members of his/her family to be administered and sojourn in South Africa and or waive any prescribed (regulatory) requirements for good cause and/or grant any foreigner or category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist justifying such a decision.

S 31(2)(b) provides that the Minister may, upon application, grant a foreigner or a category of foreigners the right of permanent residence for a specified or unspecified period, when special circumstances exist justifying such a decision. The Minister may also exclude a foreigner or a group of ‘identified’ foreigners from such dispensation and may, for good cause, withdraw such right(s) from a foreigner or a category of foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive any prescribed requirement or form, in respect of any such application by a foreigner for the grant of permanent residence.

There are a myriad of circumstances that may arise wherein an applicant may apply to the Minister of Home Affairs to grant certain concessions in terms of section 31(2)(b) or under 31(2)(c) under the Immigration Act (the “Act”) that may pertain either to the acquisition of permanent residence “when special circumstances exist” or “for good cause, waive any prescribed requirement or form”.

The Minister is empowered in terms of the Immigration Act to “waive” any regulatory requirement or form.  A foreigner may apply for such waiver on the basis that “good cause” exists for the granting of such waiver.

The term “good cause” has never been defined, either in terms of legislation or by the South African judiciary.  In practical terms an applicant must demonstrate that there is compelling justification for the waiving of a regulatory requirement or form, and if the Department of Home Affairs (on behalf of the Minister) determines that a violation of a constitutional right, or an irrational consequence, will arise by a refusal to grant such waiver, waivers are normally granted.

A typical scenario necessitating a waiver under section 31(2)(c) would be where a specific requirement or form is applied to the Minister to be dispensed with.

Here are a few examples of waiver applications:

• A foreigner, sojourning in South Africa, has in the past submitted police clearance certificates from his country of residence of more than 12 months since his 18^th One of those countries is Saudi Arabia.  Since his last submission to the Department of Home Affairs of his Saudi Arabian police clearance certificate he has never returned to such country.  He now intends to apply for permanent residence in South Africa and will, in terms of Immigration Regulation 23(2)(e) require a police clearance certificate from Saudi Arabia.  Since he will not be able to acquire a new Saudi Arabian police clearance certificate without, at great expense and inconvenience, returning to that country physically to obtain one, he applies for a waiver from the aforementioned regulatory requirement in relation to a Nigerian ,USA or Saudi Arabia police clearance certificate if perhaps you have not lived there for 10 to 15 years and would have difficulty to obtain same .  Such applications have been largely successful.
• A refugee sojourning in South Africa in terms of the Refugees Act wishes to apply for a critical skills work visa in terms of section 19(4) of the Immigration Act. In terms of Ahmed and Others v Minister of Home Affairs and Another [2018], ZACC 39  an asylum seeker or refugee sojourning in South Africa must first apply for a waiver from the requirements of Immigration Regulation 9, which includes the requirement that any temporary residence visa applicant must submit his or her application in person to a foreign South African mission where such applicant ordinarily resides or holds citizenship.  Once the waiver from such requirement is granted only then may the asylum seeker or refugee proceed to submit an application for a temporary residence visa application in South Africa.  These waivers must ordinarily be granted otherwise a ruling by the Constitutional Court will be violated.

A regulatory waiver application made in South Africa may take anywhere between 4 – 7 months on average to be processed and adjudicated by the Department of Home Affairs.  In order to apply for a waiver the applicant must be in possession of a valid refugee or immigration status.

The Immigration Act and the Department of Home Affairs abhors fraudulent documents.  Section 29(1)(f) provides ; The following foreigners are prohibited person and do not qualify for a port of entry visa, admission into the republic , visa or a permanent residence permit … anyone found in possession of a fraudulent visa, passport , permanent residence permit  or identification document.  Section 49(14) and 49(15) makes the use or attempted use of or uttering of any fraudulent document for the purpose of entering remaining in or departing from and residing in the republic a criminal offence, of which a person on conviction is liable to imprisonment of up to 15 years.  So when one finds him of herself in possession of a fraudulent document how does one comeback from this immigration abyss?

There are two paths to rehabilitating yourself when you have been rendered a prohibited person for using or attempting to use or uttering a fraudulent visa, permit or Identity document.  Section 29(2) makes provision for the Director General on good cause declare that person is no longer a prohibited person.  This is done by way of submitting an application to Director General setting forth good cause why the person should be removed from the prohibited persons list.

Another avenue is in terms of section 32 of the Immigration Act and Regulation 30.  Section 32 is an appropriate route in the event that the person is still in the country and looking to apply for a new visa.  Regulation 30 provides 3 tests, that a person is an illegal foreigner, who has neither been arrested for the purpose of deportation nor been ordered to leave and who wishes to apply for a status after the expiry of his or her status.

Section 32 is applicable because by virtue of being in possession of a fraudulent permit or visa and have not been arrested ordered to leave then you meet the criteria under section 32.

The next criteria is that the person would need to show good cause why you failed to renew your previous visa.  This would include the circumstances that led to you being in possession of fraudulent document.  Often people are victims of an elaborate immigration scam and their permits would have worked for few times and so would be unaware of the fraudulent nature of their status until it is brought to their attention. They are as much victims of the fraud as is the state.  It is important to be able to prove definitively that a third party was at play and in our experience, this works to the persons advantage.

The last criteria would be proof that the person is eligible for the visa that they intend to apply for.  This is submitted in the form of all the required documents for the respective visa.

It is important to highlight that immigration issues of this kind do not go away with time.  The Department will always discover that a person’s status is fraudulent or obtained in a fraudulent manner.  So tackling these head on will be the best approach to any similar situation.  The effect of coming forward to attempt to regularise your status is better than not doing anything.  Any good faith effort to rehabilitate your status will certainly mitigate risks of being criminally convicted and will  count as a positive in an application to remove the prohibited person status. It is also accepted that not every case can be rehabilitated.

For assistance with your immigration matter you can contact us at our offices and speak to one of our specialists.

Sa Migration International

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Overstaying one’s visa is a common occurrence among people who applied to extend their visa in South Africa and said visa not issued in time for travel .

In recent months overstaying one visa has moved from being a minor inconvenience to a possible criminal offence with potentially serious ramifications. The changes brought about by the new immigration laws have made overstaying ones visa a very serious affair which needs a careful and smart approach to remedy.
Let us now explore the effect of overstaying ones visa and what steps to take to correct this now serious matter.

Effect of an overstay
An individual who remains the republic after his or her visa has expired is in violations of the Act. The immigration Act describe such individual as illegal Foreigners. Illegal foreigner are dealt with in terms of section 32 which provides:
32(1) any illegal foreigner shall depart, unless authorised to do so by the director general as well as any illegal foreigner shall be deported.
The seriousness of an overstay is clear from the section, anyone who is considered an illegal foreigner must be deported and there are no exceptions. In addition section 30(1) (h) renders one departing the republic on an expired status an undesirable.

Legalization of an Overstay
Section 32(10 read with regulation 30 provides for a mechanism to cure an overstay a potentially avoid any sanction for the overstay. This process is commonly referred to as legalisation and is given expression in the following section:

(a)Demonstrate, in writing ,to the satisfaction of the Director General that he or she was unable to apply for such status for reasons beyond his or her control and;
If you require assistance with Uplifting the Overstay ban and or Legalization and have any questions on the topic please feel free to contact our offices for specialist advice.
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• Under the National Interest Exceptions protocol, certain visa holders and exchange visitors may travel to the US.
• This applies to specialised teachers and au pairs in South Africa.
• It also includes immigrant and fiancé(e) K-1 visas, which require a US citizen sponsor.

The United States has expanded its list of National Interest Exceptions (NIE), which effectively exempt certain South Africans – with specific skills, jobs, and visas – from its ongoing travel ban.

It’s been three months since US President Joe Biden closed the country’s borders to travellers from South Africa. The decision to restrict travel was associated with fears around the 501Y.V2 variant of Covid-19 first detected in the Eastern Cape.

Due to international concerns around the local prevalence of the 501Y.V2 variant – which is more transmissible and tougher to vaccinate against – South African travellers have become tightly restricted.

But while other countries have only afforded exemptions to returning citizens and permanent residents, the US has continuously updated its NIE list for purposes related to humanitarian travel, public health response, and national security.

Shortly after the travel ban was imposed on South Africa in January, the US Bureau of Consular Affairs announced that H-2A visa holders – defined as non-immigrant certification for temporary workers performing agricultural services – would be included as an NIE.

This exemption was particularly positive news for South Africans, who account for the highest number of H-2A visa holders outside of Mexico.

South Africans holding valid immigrant or fiancé(e) K-1 visas are now allowed to enter the US. This applies to foreign citizens who are sponsored by direct relatives living in the US or by a prospective US-based employer. It also permits a foreign-citizen fiancé(e) to travel to the US and marry his or her US citizen sponsor within 90 days of arrival.

Visa applicants have, however, been warned of backlogs at embassies and consulates.

“The Covid-19 pandemic continues to severely affect the ability of embassies and consulates around the world to be able to resume routine visa services,” says the US Bureau of Consular Affairs in response to ongoing lockdown restrictions.

“Combined, these restrictions have reduced appointment capacity during the pandemic, which has created a significant backlog of both immigrant and non-immigrant visa applicants awaiting a visa interview. The provision of services to U.S. citizens abroad is the first priority of consular sections abroad.”

Other exemptions are also afforded to certain non-immigrant “Exchange Visitors”.

Au pairs who are able to provide specialised care for minor US citizens with particular needs – medical, special education, or sign language – have also been added to the NIE list. This also applies to au pairs who take care of children whose parents are either frontline healthcare workers or medical researchers involved in work around Covid-19.

South Africans who are successfully enlisted in bilateral exchange programmes which are “designed to promote US national interests” will be allowed to enter the US. This programme must be endorsed by the US government at either federal, state, or local government level.

Similarly, interns and trainees on US government agency-sponsored programs are now also exempt from the travel ban.

Specialised teachers, who hold a degree-equivalent to a US bachelor’s degree in either education or the academic subject field in which they intend to teach, can also enter the US’ teacher programme which will exempt them from the ban.

Applying teachers will need to have at least two years’ experience and must “possess sufficient proficiency in the English language”.

South Africa isn’t the only country which is currently being subjected to US travel restrictions. The ban, and associated NIE exemptions, currently apply to travellers from China, Iran, Brazil, the Schengen Area, the United Kingdom, and Ireland.